U.S./H.K Relationship

Hawaiian FOCUS ON History http://www.HawaiianKingdom.org The Relationship between the Hawaiian Kingdom and the United States of America by David Keanu Sai

The United States of America was the first to rec- and undoubted right to travel and to reside in the ognize Hawaiian independence on December 19th, states of the two high contracting parties, subject to 1842. Seven years later on December 20th, a Treaty the same precaution a police which are practiced of Friendship, Commerce and Navigation was signed towards the subjects or citizens of the most favoured and ratified by both countries. The treaty came into nations…and each of the two contracting parties effect on August 24th, 1850. Since then, four con- engage that the citizens or subjects of the other resid- ventions were entered into concerning trade and ing in their respective States shall enjoy their proper- commerce, money orders and postal agreements. ty and personal security, in as full and ample manner The 1849 treaty provides the initial recognition of their own citizens or subjects, of the subjects or between the two states of the characteristics of its citizens of the most favoured nation, but subject sovereignty and equality. Professor Ian Brownlie, always to the laws and statutes of the two countries QC, an expert on public international law, states respectively.” (emphasis added). Article VIII, 1849 these characteristics to be (1) jurisdiction, prima Treaty. facie exclusive, over a territory and the permanent (3) The dependence of obligations arising from population living there; (2) a duty of non-interven- customary law and treaties on the consent of the tion in the area of exclu- obligor. The United States of sive jurisdiction of other (a) “Any citizen or subject of either party America was the first states; and (3) the depen- infringing the articles of this treaty shall be held to recognize Hawaiian dence of obligations aris- responsible for the same and the harmony and good ing from customary law correspondence between the two governments shall independence on and treaties on the consent not be interrupted thereby, each party engaging in no December 19th, 1842. of the obligor. way to protect the offender or sanction such viola- (1) Jurisdiction, prima tion.” Article XVI, 1849 Treaty. facie exclusive, over a territory and the permanent The Hawaiian Kingdom population living there. also had consular relations The Hawaiian (a) “There shall be perpetual peace and with the United States by Kingdom also had amity between the United States and the King of the having a diplomatic lega- consular relations Hawaiian Islands, his heirs and his successors.” tion at Washington, D.C., with the United States Article I, 1849 Treaty. and Consul-Generals in by having a (b) “…and each of the two contracting par- New York and San Diplomatic Legation at ties engage that the citizens or subjects of the other Francisco. The United Washington, D.C., and residing in their respective States shall enjoy their States, in turn, also had a property and personal security, in as full and ample diplomatic legation at Consul-Generals in manner of their own citizens or subjects, of the sub- Honolulu as well as a New York and San jects or citizens of the most favoured nation, but sub- Consul General. Francisco. ject always, to the laws and statutes of the two coun- On January 16, 1893, tries respectively.” Article VIII, 1849 Treaty. United States diplomatic and military personnel con- (2) A duty of non-intervention in the area of exclu- spired with a small group of individuals to overthrow sive jurisdiction of other states. the constitutional government of the Hawaiian (a) “The contracting parties engage, in Kingdom and prepared to provide for annexation of regard to the personal privileges, that the citizens of the Hawaiian Islands to the United States of the United States of America shall enjoy in the America, under a treaty of annexation submitted to dominion of His Majesty the King of the Hawaiian the United States Senate on February 15, 1893. Islands, and the subjects of his said Majesty in the Newly elected U.S. President Grover Cleveland, hav- United States of America, that they shall have free ing received notice that the cause of the so-called The Violation of International Law 2 revolution derived from intervention by U.S. diplo- correspondence dated October 18th, 1893, to newly matic and military personnel, withdrew the treaty of commissioned U.S. Minister Albert Willis, assigned annexation and appointed James H. Blount, as to the U.S. Legation in the Hawaiian Islands, Special Commissioner, to investigate the terms of the Secretary of State Gresham gave the following direc- so-called revolution and to report his findings. tive. On July 17, 1893, Special Commissioner James “On your arrival at Honolulu you will take advan- Blount reported accurately and fully upon the cir- tage of an early opportunity to inform the Queen of cumstances of the so-called revolution to U.S. this determination, making known to her the Secretary of State Walter Gresham. Secretary of President’s sincere regret that the reprehensible con- State Gresham then advised President Cleveland that duct of the American minister and the unauthorized “The provisional government was established by presence on land of a military force of the United the action of the American minister and the presence States obliged her to surrender her sovereignty, for of the troops landed from the Boston, and its contin- the time being, and rely on the justice of this ued existence is due to the belief of the Hawaiians Government to undo the flagrant wrong. that if they made an effort to overthrow it, they You will, however, at the same time inform the would encounter the armed forces of the United Queen that, when reinstated, the President expects States. that she will pursue a magnanimous course by granti- The Government of Hawaii surrendered its authori- ng full amnesty to all who participated in the move- ty under a threat of war, until such time only as the ment against her, including persons who are, or have Government of the United States, upon the facts been, officially or otherwise, connected with the being presented to it, should reinstate the constitu- Provisional Government, depriving them of no right tional sovereign, and the Provisional Government or privilege which they enjoyed before the so-called was created “to exist until terms of union with the revolution. All obligations created by the Provisional United States of America have been negotiated and Government in due course of administration should agreed upon.” A careful be assumed. "Can the United consideration of the fact Having secured the Queen’s agreement to pursue States consistently will, I think, convince you this wise and humane policy, which it is believed you insist that other that the treaty which was will speedily obtain, you will then advise the execu- withdrawn from the Senate tive of the Provisional Government and his ministers nations shall respect for further consideration of the President’s determination of the question the independence of should not be resubmitted which their action and that of the Queen devolved Hawaii while not for its action thereon. upon him, and that they are expected to promptly respecting it them- Should not the great relinquish to her constitutional authority.” selves? Our wrong done to a feeble but On December 20, 1893, U.S. Minister Albert Willis Government was the independent State by an notified Secretary of State Gresham of the Queen’s first to recognize the abuse of the authority of the acquiescence to the conditions of reinstatement dated independence of the United States be undone by December 18, 1893, which read, in part, Islands and it should restoring the legitimate “I, Lili’uokalani, in recognition of the high sense of be the last to acquire government? Anything justice which has actuated the President of the United short of that will not, I States, and desiring to put aside all feelings of per- sovereignty over them respectfully submit, satisfy sonal hatred or revenge and to do what is best for all by force and fraud." the demands of justice. the people of these Islands, both native and foreign U.S. Secretary of State Can the United States born, do hereby and herein solemnly and pledge Walter Gresham. consistently insist that other myself that, if reinstated as the constitutional sover- nations shall respect the eign of the Hawaiian Islands, that I will immediately independence of Hawaii while not respecting it them- proclaim and declare, unconditionally and without selves? Our Government was the first to recognize reservation, to every person who directly or indirect- the independence of the Islands and it should be the ly participated in the revolution of January 17, 1893, last to acquire sovereignty over them by force and a full pardon and amnesty for their offenses, with fraud.” restoration of all rights, privileges, and immunities From this advise the President deemed it proper not under the constitution and the laws which have been to resubmit the so-called treaty of annexation to the made in pursuance thereof, and that I will forbid and U.S. Senate and initiated certain steps to reinstate the prevent the adoption of any measures of proscription Hawaiian Kingdom government. In a diplomatic or punishment for what has been done in the past by Understanding the Situation 3 those setting up or supporting the Provisional representing the Hawaiian people, but all treaties Government.” made by those sovereigns with other and friendly For more political reasons than legal obligations, powers, and it is thereby in violation of international the United States fails to follow through in its com- law. mitment to assist in reinstating the constitutional Because, by treating with the parties claiming at government of the Hawaiian Kingdom. Instead, the this time the right to cede said territory of Hawaii, United States allows five years to lapse and a new the Government of the United States receives such United States President, William McKinley, enters territory from the hands of those whom its own mag- into a second treaty of annexation with the same indi- istrates (legally elected by the people of the United viduals who participated in the so-called 1893 revo- States, and in office in 1893) pronounced fraudulent- lution on June 16, 1897. On the following day in ly in power and unconstitutionally ruling Hawaii.” Washington, D.C., Queen Lili’uokalani filed a diplo- In addition, political organizations comprising of matic protest clearly relying upon the obligations of Hawaiian nationals also relied upon the obligations customary international law by stating, in part, incurred and accepted by the United States govern- “I declare such a treaty to be an act of wrong ment gave notice of their sentiment to the U.S. State toward the native and part-native people of Hawaii, Department in July of 1897, as well as presenting a an invasion of the rights of the ruling chiefs, in viola- petition of 21,169 signatures the U.S. Senate protest- tion of international rights both toward my people ing the annexation attempt by treaty. As a result of and toward friendly nations with whom they have these protests the Senate was not able to get the made treaties, the perpetuation of the fraud whereby required two-thirds vote to ratify the so-called treaty. the constitutional government was overthrown, and, In spite of the failure to ratify the treaty of annexa- finally, an act of gross injustice to me. tion, the United States opted to unilaterally annex the Because the official protests made by me on the Hawaiian Islands by a joint resolution that relied seventeenth day of January, 1893, to the so-called solely on its congressional authority, in defiance of Provisional Government was signed by me, and its obligations under customary international law to received by said government with the assurance that the Hawaiian Kingdom, in order to establish a U.S. the case was referred to the United States of America military outpost in the Pacific. for arbitration. On August 6th, 1898, the political organizations Because that protest and my communications to the who were responsible for the 1897 signature petitions United States protesting the treaty of annexation made a final "...said treaty ignores, Government immediately protest to the United States government over the joint not only all professions thereafter expressly resolution of annexation. The protest stated, in part, of perpetual amity and declare that I yielded my “WHEREAS: The so-called Republic of Hawaii authority to the forces of by its Executive and Senate formulated a treaty to good faith made by the the United States in order secure the annexation of Hawaii to the United States, United States in former to avoid bloodshed, and and said treaty having failed of ratification by the treaties with the sover- because I recognized the Senate of the United States, and by such failure to eigns representing the futility of a conflict with ratify having become void and of no effect as to Hawaiian people, but all so formidable a power. Hawaii, because of the terms Article 32 of the treaties made by those Because the President Constitution of the Republic of Hawaii, which read: sovereigns with other of the United States, the ‘The President, with the approval of the Cabinet, is and friendly powers, Secretary of State, and an hereby expressly authorized and empowered to make and it is thereby in vio- envoy commissioned by a Treaty of Political or Commercial Union between lation of international them reported in official the Republic of Hawaii and the United States of documents that my gov- America, subject to the ratification of the Senate;’ law." Protest of Queen ernment was unlawfully and Lili'uokalani against the coerced by the forces, WHEREAS: The Senate and House of 1897 treaty of annexa- diplomatic and naval, of Representatives of the United States have passed a tion. the United States; that I joint resolution for the annexation of the Hawaiian was at the date of their Islands, and such joint resolution has not been passed investigations the constitutional ruler of my people… upon by the people of Hawaii nor by their Because said treaty ignores, not only all profes- Representatives in Legislature assembled; and sions of perpetual amity and good faith made by the WHEREAS: By memorial the people of Hawaii United States in former treaties with the sovereigns have protested against the consummation of an inva- Continued Existence of the Kingdom 4 sion of their political rights, and have fervently notion that State obligations can be unilaterally with- appealed to the President, the Congress an the People drawn. Rather it is the withdrawal that serves as evi- of the United States to refrain from further participat- dence of the violation of obligations incurred by the ing in the wrongful annexation of Hawaii; and unfaithful State. WHEREAS: The Declaration of American It has been seen that the United States and the Independence expresses that Governments derive Hawaiian Kingdom have clearly created a uniform their just powers from the consent of the governed; and consistent practice of a bi-lateral relationship as Therefore, Be it evidenced by the multiple treaties and conventions as RESOLVED: That as the representatives of a large well as the diplomatic correspondences; in particu- and influential body of native Hawaiians, we solemn- lar, referring to the investigation of the so-called rev- ly protest against annexation in the manner proposed olution of 1893 and the agreements that followed and without reference to or obtaining the consent of between Queen Lili’uokalani and President the people of the Hawaiian Islands.” Cleveland. Westel W. Willoughby, a U.S. Constitutional The events that occurred since January 16th, 1893 scholar and author of The Constitutional Law of the and leading to the so-called annexation of 1898 must United States (1929), made the following comment be emphatically categorized in its proper context as concerning the annexation of the Hawaiian Islands. fraud and not conquest. Therefore, in the absence of "The constitutionality of the annexation of Hawaii, cession, conquest or a proven claim of prescription by a simple legislative act, was strenuously contested extinguishing Hawaiian statehood, the national char- at the time both in Congress and by the press. The acter of the Hawaiian Kingdom cannot be legally right to annex by treaty was not denied, but it was changed without its consent. As such, the legal status denied that this might be done by a simple legislative of the Hawaiian Kingdom is an illegally occupied act…Only by means of treaties, it was asserted, can State by a nation that can claim no international right the relations between States be governed, for a leg- or title, except by its Congressional legislation. On islative act is necessarily without extraterritorial this note Professor Brownlie explains that: force––confined in its operation to the territory of the "...illegal occupation cannot of itself terminate State by whose legislature it is enacted." statehood. Elsewhere the For the next century, the United States would rely general question of bal- "...illegal occupation exclusively on its Congressional authority to govern ancing effectiveness and cannot of itself termi- the Hawaiian Islands, and would make no effort to the principle ex injuria nate statehood.", extingush the Hawaiian Kingdom before any interna- non oritur jus** is con- Professor Ian Brownlie, tional tribunal. sidered. Here it must suf- The fundamental question herein lies whether the fice to point out that, QC, expert on Public obligations incurred upon the United States as a mat- when elements of certain International Law. ter of customary international law to the Hawaiian strong norms (the jus Kingdom can be removed. J.L.Brierly, author of the cogens) are involved, it is less likely that recognition Law of Nations, states, and acquiescence will offset the original illegality." “…what is sought for [in customary law] is a gen- * jus cogens are authoritative rules of general internation- eral recognition among States of a certain practice as al law obligatory.” **ex injuria non oritur jus is the principle that no benefit This practice by the Hawaiian Kingdom and the can be received from an illegal act United States, coupled with objective norms of inter- national law, the jus cogens*, forms the basis of inter- David Keanu Sai is presently serving as acting Minister of the Interior and Chairman of the Council of Regency. national rights and duties to each State as both are the He served as lead Agent for the acting government of the subjects of international law and the obligations that Hawaiian Kingdom in arbitration proceedings before the arise through custom. Judge Huber, in an interna- Permanent Court of Arbitration at The Hague, tional arbitration case, Spanish Zone of Morocco Netherlands, from November 1999-February 2001. He is Claims, said: also serving as Agent in a Complaint against the United “Responsibility is the necessary corollary of a States of America concerning the prolonged occupation of right. All rights of an international character involve the Hawaiian Kingdom, which was filed with the United international responsibility. If the obligation in ques- Nations Security Council on July 5, 2001. For more infor- tion is not met, responsibility entails the duty to make mation and updates visit our website at: reparation.” http://www.HawaiianKingdom.org These scholars do not imply or even entertain the